By Jim Cline
In a decision on a case that had presented significant financial and operational important to Public Employee Unions, the United States Supreme Court held this Monday in Harris v Quinn that the Illinois law, as applied to a special class of home health care workers, unconstitutionally imposed a “fair share” dues payment requirement.
Ultimately, the Court refused to extend that holding to the array of broader public sector labor contracts, noting the unusual nature of the health care workers as joint public/private employees for whom collective bargaining only partially defined terms of employment.
Nonetheless, in its language the five Justice Majority questions the continued viability of Abood v. Detroit Board of Education, which has long been the basis for enforceable Union “fair share” dues mandates. The Court specifically refused to affirm Abood while simultaneously declining to overturn it, leaving the continued issues about the constitutionality of mandated Public Sector Union dues to another day.
Some background on the underlying issue is important. Virtually every Public Sector labor contract has a “Union dues” clause that permits the Union to collect dues from members. Furthermore, except in “right to work” states, Unions are allowed to negotiate for an “agency shop” clause compelling dues payments from nonmembers, and generally do so. However, the issue of compelling Public Employees to pay for a Union involuntarily raises First Amendment questions, both of free speech and the right of Freedom of Association (or in this case non-association).
Going back to the outset of public sector unionism, the courts had wrestled with the constitutionality of compulsory dues. To function effectively, Unions more than likely engage in some level of political activity. Labor laws may impose a single “exclusive bargaining representative” upon Employees, but does that mean that those represented Employees that dissent from the political views of the Union may be compelled to pay for political activities and speech that they might not share? Despite the obligation of the Union to represent all Employees, the Courts have consistently said “no.”
Instead, the Supreme Court ultimately adopted a compromise framed in the Abood decision: Dissenters could “opt out” of the Union, the Union would retain its right to represent the dissenters nonethless, and the dissenters, in return for those representation services, would pay a “fair share” dues payment in lieu of regular dues. In several cases following Abood, the courts have clarified the scope and mechanism of such “fair share” contributions. Essentially, activities unrelated to collective bargaining representation are financially segregated and the “fair share” amount is based upon the Union’s actual cost of providing services in furtherance of the negotiations and enforcement of the labor contract.
Some have erroneously referred to this status as “fair share membership.” It would be more accurate to call these individuals “fair share nonmembers.” Although a Union retains a “Duty of Fair Representation” to these individuals, by opting for “fair share” status, the dissenters give up their ability to participate in internal Union affairs, including elections and contract ratification.
That leads back to this week’s Harris v. Quinn decision. Organizations in opposition to Public Sector Unions hoped to use this decision to strip Unions of their primary funding source: mandatory dues. They reached close to accomplishing that goal. Court watchers had wondered whether the normally conservative Justice Scalia would join the other 4 conservative judges and overturn Abood. Ultimately they did not, and invalidated the Illinois home health workers dues requirement on the narrow grounds that they were not regular employees of the state.
But the Majority inserted language into the decision signaling a possible intention to attack Abood and “agency shop” clauses. The Majority indicated:
The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.
The Court then proceeded to attack the logic of Abood and the practicality of the financial segregation mechanisms adopted in its wake. These attack included challenges on several of the Court’s own rulings since the initial 1967 Abood ruling.
In the end, the Court stopped short of reversing Abood, striking down the Illinois provisions on narrower grounds, but the language in the Majority decision questions the logic of Abood, suggesting that the Majority might use this decision as a stepping stone to reversal at the next possible opportunity.
On the other hand, there are reasons to believe that, under the Court’s current make up there may be insufficient support to hold “agency shop” clauses unconstitutional. They had such an opportunity in the case presented, but it appears they lacked the 5 votes to take that full step. For now, Public Sector Union dues may be mandated in a Union contract, but this important issue is one to continue to watch. The right of Public Employees to unionize continues to be a contentious political issue and the Court is only marginally removed from that political battle.
